The Register-Herald, Beckley, West Virginia

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October 15, 2013

Greenbrier pool issue may head back to court

LEWISBURG — While $300,000 has quietly been returned to Greenbrier County coffers, the balance of a controversial $1.3 million allocation for renovation of a swimming pool appears destined for further court action.

Drawn from hotel/motel tax funds, the money was sent by the county commission to the New River Community and Technical College Foundation, pursuant to a lease commissioners had signed with the college’s Board of Governors. That lease called for the county to pay the cost of renovating an indoor swimming pool located in a building on New River’s Lewisburg campus and for the county to manage the aquatic facility once construction on the property was complete.

After a judge ruled that the expenditure of hotel/motel tax revenue for such a purpose was illegal, the county commission demanded that New River return the money.

New River’s response to the ultimatum was, according to college President Dr. L. Marshall Washington, to return the $300,000 that the judge said had been allocated at an improper commission meeting. Washington said that money was refunded to the county via check on Sept. 23, and the check was cashed on Sept. 30.

The county commission has not publicly or privately thanked the college for the refund, Washington said in a telephone interview with The Register-Herald on Monday afternoon.

“We think it’s very suspicious they did not mention the return of the money,” Washington said, noting the issue of the fate of the pool allocation had been discussed at a commission meeting just last Tuesday, more than a week after the county cashed New River’s check.

As for the balance of the money that has been in the hands of New River’s Foundation since December 2012, Washington said, “(Monday) morning, the college’s Board of Governors voted not to return the remaining $1 million to the Greenbrier County Commission.”

He said the vote was unanimous.

Instead of refunding the money, the Board of Governors is asking the foundation to file an interpleader action in a jurisdiction other than Greenbrier County Circuit Court.

“The court will get the money and decide where it goes,” Washington noted.

“The People’s Law Dictionary” by Gerald and Kathleen Hill offers the following definition of this type of legal action: “An ‘interpleader’ is the procedure followed when two parties are involved in a lawsuit over the right to collect a debt from a third party, who admits the money is owed but does not know which person to pay. The debtor deposits the funds with the court (‘interpleads’), asks the court to dismiss him/her/it from the lawsuit and lets the claimants fight over it in court.”

In this instance, the New River Foundation is the entity currently in possession of the $1 million which both the college and the county commission assert a claim to.

Washington said the Board of Governors’ request will be submitted to the foundation within the next two days. He estimated it will probably take between five and 10 days to file the court documents but cautioned, “It depends on the foundation whether this course is followed.”

Asked if any of the contested funds have already been spent, which could impede the foundation’s effort to deposit the full $1 million with the court, Washington said, “Money is readily available, but we have incurred costs.”

Noting he met privately with Greenbrier County Commissioner Mike McClung recently to set forth the facts of the case, Washington said, “They (the current commissioners) canceled the lease with us (in July), but they failed to recognize there has been extraordinary effort and expense on the part of the college to renovate the swimming pool in the Arts and Science Building.”

He emphasized the pool renovation project was initiated by county officials, not by the school.

“They approached the college several years ago with this idea about renovating the swimming pool,” he said. “We did not approach the county commission; they approached us.”

Washington said New River received the funds for the project in good faith, believing the lease for the 9,700-square-foot aquatic center would be honored.

“Just because you may have an election and the members of the responsible group changes doesn’t mean you can come in and overturn an action taken after the project has moved forward,” he said.

“We’ve expended money and time on the design and the infrastructure needed to move forward with this swimming pool. We should receive something from the county for our efforts, time and money.”

One of the pool project’s strongest supporters on the commission, Betty Crookshanks, was defeated in her bid for re-election and left office at the end of 2012. Woody Hanna, who won that commission race and took office in January, then voted with McClung to cancel the lease and demand the college return the money designated for the pool.

Acknowledging that the county’s allocation of the $300,000 was ruled null and void by the court, Washington said the judge did not attach any blame to New River for receiving the money.

“The $300,000 was an illegal act by the county commission, and we wanted to do right, so we returned that $300,000 on Sept. 23,” he said.

In order to transform the space that had been designated for the aquatic facility into an area usable by the college, New River will now have to incur additional expenses, Washington said.

“We have to bring in new architects to redesign that portion of the building,” he said. “We would like to have it used by the students, but we will not be exploring pool options at this point.”

He said New River’s focus is on offering “acceptable, affordable college programs,” noting, “We want to support Greenbrier County citizens, and we will continue to do so.”

Washington said the college has more than a $12 million annual impact on the Greenbrier Valley, a figure that includes not only instructor and staff salaries but also students’ purchases of books and course-related supplies and money spent in local restaurants and gasoline stations.

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